Conclusion
15Having considered the evidence, the submissions and undertaken a view, it is apparent that the threshold issue concerns the weight to be given to the CP's restriction on late-night trading after midnight. Insofar as the CP is not an adopted DCP, it appears to have gone through an extensive, widespread public consultation process and subsequently applied as a council policy.
16It seems to me that this policy approach is consistent with that outlined by McClellan CJ in Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 revised - 01/10/2004, where he examined the status of development control plans and other policy documents and stated that:
88 The Environmental Planning & Assessment Act 1979 gave statutory recognition to development control plans. However, there was before that Act, and there remain, many cases where a council adopts statements of policy for its area, or part of it, which are not included in development control plans. They relate to many matters and may include master plans for sites or parts of a council area. They may be adopted after considerable public participation, detailed research and describe fundamental expectations of the relevant council. When there is a relevant policy which is not a development control plan, the question arises as to the approach to that policy and the weight to be given to it in the decision of the relevant council and in an appeal, if any, to this Court.
89 In Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) 129 LGERA 195, Mason P discussed the role of policy in the consideration process. The President emphasised that environmental planning instruments are not "the only means of discerning planning policies or the 'public interest'" (at LGERA 210).
90 The public interest is expressly acknowledged as a relevant consideration in s 79C(1)(e) of the Environmental Planning and Assessment Act. It was similarly acknowledged in s 91 of the Act in its original form. It must extend to any well-founded detailed plan adopted by a council for the site of a proposed development either alone or forming part of a greater area, even if it is not formally adopted as a development control plan.
91 In my opinion, the weight to be given to a detailed policy will depend upon a number of matters. If the policy has been generated with little, if any, public consultation and was designed to defeat a project which is known to be under consideration by a developer for a particular site, it may be given little weight. Of course, the intrinsic attributes of the policy may be given significant weight, but that weight is not dependent on then being included in a policy. It can be established in other ways. However, the position would be markedly different if the policy is the result of detailed consultation with relevant parties, including the community and the owners of affected land, and reflects outcomes which are within the range of sensible planning options.
92 To my mind, the matters which are relevant when determining the weight to be given to a planning policy adopted by a council are as follows:
the extent, if any, of research and public consultation undertaken when creating the policy;
the time during which the policy has been in force and the extent of any review of its effectiveness;
the extent to which the policy has been departed from in prior decisions;
the compatibility of the policy with the objectives and provisions of relevant environmental planning instruments and development control plans;
the compatibility of the policy with other policies adopted by a council or by any other relevant government agency;
whether the policy contains any significant flaws when assessed against conventional planning outcomes accepted as appropriate for the site or area affected by it.
17Applying these points to the subject CP policy, my assessment is that:
· The policy has been adopted after detailed community consultation.
· I understand that council has been consistently applying the policy since its adoption in December 2008 and that it provides for an annual progress report. Furthermore, council contributes towards an annual budget of $50000 for public transport in the area. This involves maintaining the Pumpkin Bus that transports patrons leaving the licenced premises to public transport nodes.
· The policy is consistent with the current controls wherein the 3A zone objectives relevantly include:
s (j) to enhance individual and community economic well - being and welfare and safeguard the welfare of future generations,
s (k) to encourage consideration of social consequences when decisions are made in the implementation of this plan,
· The policy is consistent with the crime prevention guidelines issued by DUAP in April 2001 that highlight council's obligations to ensure that a development provides safety and security to users and the community. This obligation is exercised under the s79C considerations of:
o The likely impacts of that development, including the environmental impacts on the natural and built environments, and social and economic impacts on the locality.
o The public interest.
· In an overall sense, the policy is therefore consistent with the provisions of the LEP so as to be accorded significant weight.
18As noted, reference to the CP then confirms that based on consideration of crime data, consultation with community, stakeholders and agency partners that Coogee is clearly identified as a crime "hotspot" for alcohol related anti-social behaviour after midnight. Whilst there are a number of approved late-night trading establishments, including the Coogee Bay Hotel, it appears that some patrons still cause anti-social behaviour.
19In order to address this unsatisfactory situation, the CP does not allow for the proposed extended hours. It appears from the evidence that when the subject use was first applied for in mid 2008, the council assessment report identified that:
"For sometime, concerns have been raised with Council in regard to the late night operation of food premises at Coogee. The late night operation of food premises encourage patrons to of the surrounding hotels/night clubs to loiter in the area, leading to or exacerbates incidents of violence and alcohol related anti-social behaviour in Coogee.
20Accordingly, I do not consider there was any compelling evidence submitted that indicates some significant change of circumstances that would now result in the setting aside of the CP policy. From my observations, the products in the store include a significant area for souvenirs, basic snacks, confectionary and other toiletries, the restricted sale of which after midnight is unlikely to cause any material disadvantage to the general public. This takes into account the existing operating hours of the Woolworth supermarket and the other existing approved late-night trading premises, which sell food.
21Insofar as submissions were made to the decision in Garlick v Randwick City Council [2009] NSWLEC 1012, wherein consent was granted in January 2009 for late-night trading to 4am for a "pie shop" nearby at 266 Coogee Bay Road, that judgment makes no reference to the CP. In the circumstances where I am satisfied that the CP should be given significant weight, I do not consider the "pie shop" consent results in any precedent to be followed. Notwithstanding this, the "pie shop" is located closer to the Arden Street than the subject premises and consequently it seems that this would be the preferred direction for departure of patrons, rather than encouraging them to traverse further into the "closed down" western part of Coogee Bay Road.
22In summary then, I am satisfied that the overall public interest considerations of public safety should override the private interest of late-night trading in the current matter. Coogee is a crime "hot spot" where there are detailed policies in place to deal with this. They are supported by the police with one of the principal strategies is to assist patrons leave the area after midnight, rather than provide more opportunities to stay in the area, which would be the case with the approval of the subject application.